Jarnail Clarifications Day #2: Ms. Indira Jaising argues that State has burden to prove inadequate representation

Reservation in Promotion

October 6th 2021

On October 6th 2021, a three-judge bench comprising Justices Nageswara Rao, Sanjiv Khanna and B.R. Gavai heard the 130 petitions regarding the implementation of the Court’s decision in M Nagaraj v Union of India (2006) for the second day.

In M Nagaraj (2006), the Court held that State governments had the discretion to provide SC/ST candidates reservations in promotion after fulfilling three conditions: First, the State must show the backwardness of the group through quantifiable data; second, it must show that the class is inadequately represented in the position/service for which reservations in promotion will be granted; and finally, it must show that the reservations are in the interest of administrative efficiency.

In Jarnail Singh v Lacchmi Narain Singh (2018), this was modified. The Court decided that the requirement of States demonstrating backwardness when granting reservation in promotion violated Indra Sawhney v Union of India (1992). In Indra Sawhney, it was presumed that once a group is added to the List of Scheduled Castes and Scheduled Tribes, there is ‘no question’ of showing backwardness all over again. However, Jarnail Singh required the government to demonstrate under-representation in the specific department through quantifiable data before providing reservation in promotion.

In these hearings, the petitioners have challenged the reservation in promotion policies in various State for non-compliance with Jarnail Singh – particularly, whether States have  satisfied the requirements of showing inadequate representation and ensuring administrative efficiency.

In the previous hearing, Khanna J observed that if the Union decided to continue offering reservation in promotion after 2006, it had to acquire data to back up the decision. The Bench directed Attorney General (AG) K.K. Venugopal to submit details of any data collected for reservation in promotions after Nagaraj.

Today, the AG, and the Additional Solicitor General (ASG) Balbir Singh concluded their submissions for the Union. Three Senior Advocates then made their submissions on various issues: Paramjit Patwalia, Rajeev Dhavan and Indira Jaising. Gopal Sankaranarayanan began his submissions and will continue tomorrow.

Roster System Meets All Conditions: AG Venugopal

Rao J began by pointing out that a 2017 Office Memorandum by the Union contained some answers to the issues raised by the AG the previous day. The Memorandum used the proportion of SC/STs in the total population to determine the percentage of seats to be reserved. Drawing from this, Rao J asked whether reservations in promotions should then be discontinued if SC/STs exceeded these percentages in the department concerned.

AG Venugopal stated that this may be true only for Group C and D posts, which are low-paying jobs, usually involving manual labour or clerical jobs. He said he will file an affidavit with more information on this.

AG Venugopal then argued for the roster system. Under this, a roster is maintained within each unit. This roster will state which seats are reserved for which categories. So, when an SC seat becomes vacant, it will be filled by another SC appointment or promotion. AG Venugopal submitted that by adopting a roster system, the proportion of SC/ST posts will remain constant, because it is evaluated against all positions. This will mean there is no excess or underrepresentation. Further, the criteria of efficiency is also maintained because even reserved categories cannot get promotions without meeting the minimum requirements.

AG Venugopal further argued that determining the amount of reservations proportional to the population was acceptable. He stated that Nagaraj, Akhil Bharatiya Soshit Karamchari Sangh (1980) and Pavitra-II (2019) supported this method. AG Venugopal submitted that the amount of reservations should be reviewed every 10 years, along with the census.

Inadequate Representation Must be Evaluated at a Service-wide Level: ASG Singh

ASG Singh presented the Court with data which the Union has collected. He said this was available on an annual basis. He stated that in Groups C and D, the representation of SC/STs is higher, while it is low in Group A. Rao J stated that in Article 16(4A), which is the basis for reservation in promotions, the inadequacy of representation must be evaluated based on ‘classes’ of posts. He asked ASG Singh whether this means that in Groups C and D, if there is a high representation, reservations should be continued.

ASG Singh responded that inadequacy must not be assessed with respect to groups but at the level of a State or Union government service level. Rao J asked what the basis for this was. ASG Singh responded that this had a ‘nexus’ with the census. It would also ensure the upliftment of SC/STs. ASG Singh also referred to the Pavitra-II judgment to argue that the Court must be ‘circumspect’ when analysing data. The sampling method adopted by the committee in Pavitra-II , was sufficient. He concluded that there is no need for the Court to examine data at a granular level unless there is excessive representation.

Khanna J said assessing adequacy of representation at the State or Union service level would be unfair. It would permit the government to keep representation low in Group A, and ‘accommodate’ this inadequacy with high representation in Group C or D, which are low-skill and low-pay posts.

Pavitra-II Takes the Right Approach: Patwalia

Senior Advocate Paramjit Patwalia appeared for the States of Maharashtra and Bihar.

He clarified that the issue before the Court was not with how reservations in promotions worked or were implemented. It was how they should be introduced. Particularly, he said it was about how the conditions of inadequate representation and maintaining efficiency should be met. He stated that because these conditions were difficult to satisfy, High Courts had repeatedly struck down attempts to provide reservations in promotion.

On the first issue of how to prove inadequate representation, Patwalia said the data must be seen across the State, across departments. This was the approach in Pavitra-II. Rao J asked whether Pavitra-II was correct on this, since Article 16(4A) specifically requires a class-wise analysis. Patwalia said that looking at each cadre to determine inadequacy was unworkable. It could be seen at a larger level first. Then, at the stage of implementation, the roster system would ensure that the numbers are correct at the cadre level. Patwalia argues that on this issue, Pavitra-II was right.

On the second issue of determining how efficiency should be maintained as well, Patwalia referred to Pavitra-II with approval. He said it took the State’s economic and financial management as a whole as an indicator of efficiency.

Court Must Ensure Data is ‘Weighty’: Dhavan

Senior Advocate Rajeev Dhavan represents petitioners belonging to unreserved categories. First, he pointed out that in addition to the three conditions others had talked about in Nagraj, there was also a requirement to ensure reservations were not excessive. He said this was important to note since reservations have become a ‘political plaything’. He also added that reservations were not a compulsion or a mandate, it was only an enabling provision.

Second, he argued that the Court could review the quantifiable data which the State provided. In Nagaraj, the Court stressed on the need for ‘weighty data’. Dhavan also argued that it was not enough that the State was satisfied with the data. The Court would have to test it to ensure it is not arbitrary.

Third, Dhavan argued that Pavitra-II was faulty. He said that it allowed the State to use a ‘sampling’ methodology, where they took data from a few departments and did not cover every cadre. He submitted that this was a faulty method of assessment.

Fourth, Dhavan said that inadequacy must be evaluated neither across the whole services nor for a whole Group or department, it must be done for each cadre individually. He claims that 16 judgments including Jarnail Singh support this view.

Fifth, Dhavan said that the Court must consider from when their judgment applies carefully. In Pavitra-II, the ruling applied retrospectively from 1978. Dhavan argued that the retrospectivity must be ‘moulded’ to the situation.

Finally, Dhavan submitted that efficiency in Article 335 of the Constitution states that ‘the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts.’ The  proviso also states that this Article would not prevent the State from lowering some standards of evaluation for SC/STs.

Dhavan argues that Pavitra-II has misinterpreted the Article. Pavitra-II places emphasis on the first part of the Article and the proviso, and does not focus on efficiency. It creates an obligation on the State to consider the claim of SC/STs. Dhavan argues this goes against the purpose of the Article, which was to ensure efficiency is not compromised, as debated in the Constituent Assembly. He urged that in service matters, efficiency must require following seniority and merit which cannot be complied with when there is reservation in promotions.

Court Must Lay Down Objective Criteria for Substantive Equality: Jaising

Senior Advocate Indira Jaising appeared on behalf of petitioners from reserved categories in Bihar, Punjab and Madhya Pradesh. Jaising began by making three general points.

First, she clarified that in Indra Sawhney, the Court had ruled that the provision of reservations under 16(4) was an aspect of the right to equal opportunity under 16(1). It was not an exception. Second, she stated that there was a difference between substantive equality and formal equality, and the Court had preferred substantive equality. Third, she argued that affirmative action was different from reservations. Reservations was about creating a ‘separate queue’, it was not just making special schemes. Setting the tone with these remarks, she argued that her arguments would rely on the concept of substantive equality.

Jaising then addressed the Court about some of the concepts discussed in the hearings. Referring to ‘merit’ she asked the Court to be ‘cautious’ about using it to understand efficiency. She referred to Michael Sandel’s book to argue that merit often ‘privileged the privileged’. She also questioned why the provision for reservation was called an ‘enabling provision’ when the Constitution never called it this. Instead, she said the right to representation is a part of a representative democracy.

Jaising turned to the first issue: adequacy of representation. She accepted that at the level of implementation, reservations must be done cadre-wise through a roster system. However, she argued that as a matter of ‘policy’ the data must be collected at a wider level. When deciding whether to grant reservations or not, the decision must be taken based on whether the community is represented across services at the State or Union level. Jaising argued that the comparison must be done at the national level, using census data. She suggested that this would be the only objective method.

Jaising asked the Court to make two specific directions. First, she asked the Court to hold that the State has the burden of proving inadequate representation. Jaising submitted that most States had not conducted such an exercise. Second, she asked the Court to direct appointing authorities to put out calls for posts annually. She argued that the authorities often delayed calls for applications and this led to vacancies rising.

On the question of efficiency, Jaising said that when she was ASG, she remembered the Union had prepared an index for it. It would measure efficiency based on a department’s output. For example, for the electricity department, the amount of electricity produced. Jaising submitted that efficiency in administration is not one person’s efficiency. It is the efficiency of the department employees and leaders working together, reserved or unreserved.

On Article 335, Jaising disagreed with Dhavan’s interpretation that elevated efficiency over equality. She submitted that in Article 335 the claims of SC/STs were as  important as efficiency.

Court Should Undertake ‘Granular’ Analysis: Sankaranarayanan

Senior Advocate Gopal Sanakranarayanan briefly addressed the Court. He argued that the Court was entitled and obliged to conduct a ‘granular’ exercise of analysing the data to justify reservations. He said this was because reservations in promotions sought to ‘upset the equality code’ of the Constitution, and so it required a high level of scrutiny.

The Bench rose for the day. Sankaranarayanan will continue his arguments at the hearing tomorrow.